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holding that the ALJ erred in failing to consider a medical opinion even though the opinion was issued six months prior to the alleged onset date
Summary of this case from Stewart v. BerryhillOpinion
No. 5:17-CV-301-FL
11-19-2018
SHAWN CUNNINGHAM, Plaintiff/Claimant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-21, DE-25] pursuant to Fed. R. Civ. P. 12(c). Claimant Shawn Cunningham ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefing has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and this matter be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant filed an application for a period of disability and DIB on September 15, 2015, alleging disability beginning December 12, 2014. (R. 20, 176-77). His claim was denied initially and upon reconsideration. (R. 20, 88-112). A hearing before the Administrative Law Judge ("ALJ") was held on October 18, 2016, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 20, 43-87). On January 25, 2017, the ALJ issued a decision denying Claimant's request for benefits. (R. 17-41). The Appeals Council denied Claimant's request for review on April 14, 2017. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ erred by failing to (1) address the medical opinion of examining psychologist Michael Purcell, (2) give substantial weight to a 100% disability rating by the Department of Veterans Affairs (the "VA"), and (3) include the need for a service dog in the RFC. Pl.'s Mem. [DE-22] at 7-12.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since the alleged onset date. (R. 22). Next, the ALJ determined Claimant had the severe impairments of spine disorders, affective disorders, anxiety disorders, and migraines and the non-severe impairments of bilateral knee pain of unknown etiology and obesity. (R. 23). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 23-24). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in mild limitations in understanding, remembering, or applying information; concentrating, persisting, and maintaining pace; and adapting or managing oneself. (R. 25). Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding he had the ability to perform light work with the following limitations:
The ALJ did not rate Claimant's degree of functional limitation in interacting with others and discussed two of the functional areas in terms of activities of daily living and social functioning, (R. 25), which is terminology from the regulation in effect prior to January 17, 2017, 20 C.F.R. § 404.1520a(c)(3) (effective June 13, 2011 to Jan. 16, 2017), rather than in terms of understanding, remembering, and applying information and adapting or managing oneself. Claimant does not raise these issues, but on remand the ALJ should take the opportunity to apply the special technique in conformity with the applicable regulation.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
[H]e can frequently reach overhead with the upper extremities bilaterally. In addition, he can occasionally climb ramps and stairs, balance, and stoop, kneel, crouch and/or crawl, but never climb ladders, ropes, [or] scaffolds. Additionally, he can occasionally operate a motor vehicle and have exposure to loud noises. Further, he is limited to performing simple, routine tasks and making simple work-related
decisions. Finally, he is limited to only frequent interaction with supervisors, co-workers, and the public, and simple work-related decisions in the work setting.(R. 26-36). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work. (R. 36). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 37-38).
V. DISCUSSION
Claimant first contends the ALJ erred in failing to address the opinion of examining VA psychologist Michael Purcell, and the opinion supports both the VA disability rating and the opinion of Claimant's treating psychologist that Claimant is unable to work on a regular and continuing basis. Pl.'s Mem. [DE-22] at 7-8. The Commissioner contends that the ALJ was not obligated to consider Dr. Purcell's opinion because (1) it was issued almost six months prior to Claimant's alleged onset date, (2) the ALJ considered the VA medical evidence pre-dating Claimant's alleged onset date, and (3) Dr. Purcell's findings are consistent with the RFC. Def.'s Mem. [DE-26] at 5-11.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 404.1527(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 404.1527(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 404.1527(c)(2). When the opinion of a treating source regarding the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" it is given controlling weight. Id. However, "[i]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Craig, 76 F.3d at 590.
The rules for evaluating opinion evidence for claims filed after March 27, 2017 are found in 20 C.F.R. § 404.1520c, but 20 C.F.R. § 404.1527 still applies in this case.
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). The weight afforded such opinions must be explained. S.S.R. 96-2p, 1996 WL 374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1 (July 2, 1996). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted).
Rulings 96-2p and 96-6p were rescinded, effective March 27, 2017, and therefore still apply to this claim. 82 Fed. Reg. 15263-01 & 15263-02 (Mar. 27, 2017). --------
Dr. Purcell, a licensed psychologist, conducted a consultative examination of Claimant on June 26, 2014. (R. 352-59). Dr. Purcell's examination was for the purpose of completing a document entitled "Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire" associated with Claimant's application for VA benefits. (R. 352, 259). In Section I, Dr. Purcell indicated Claimant's PTSD was his sole mental disorder and checked a box indicating Claimant experienced "[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation[.]" (R. 354).
In Section II, Dr. Purcell documented Claimant's relevant history and stressors; the presence of PTSD diagnostic criteria, such as the direct experience of a traumatic event, a persistent negative emotional state, irritable behavior and angry outbursts, problems with concentration, and sleep disturbances; and the presence of symptoms, including depressed mood, anxiety, suspiciousness, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including a work setting. (R. 353, 355-59).
First, the fact that Dr. Purcell's opinion was issued some six months prior to Claimant's alleged onset date does not excuse the ALJ's failure to consider and weigh it. The regulations require the ALJ to consider all evidence in the record, 20 C.F.R. § 404.1520(a)(3), and to weigh all medical opinions when making a disability determination, id. § 404.1527(c) ("Regardless of its source, we will evaluate every medical opinion we receive."). This court has previously rejected the Commissioner's argument that the ALJ need not discuss a medical opinion simply because it predates the disability period. See Cotton v. Colvin, No. 5:14-CV-00425-FL, 2015 WL 5725518, at *5 (E.D.N.C. Aug. 12, 2015) ("Where evidence predating the onset of disability is relevant to an issue in the case, the ALJ should consider that evidence in making a determination on the issue.") (quoting Treadwell v. Colvin, No. 5:13-CV-370-FL, 2014 WL 4656852, at * 10 (E.D.N.C. Sept. 17, 2014) (collecting cases)), adopted by 2015 WL 5714912 (E.D.N.C. Sept. 29, 2015). Here, Dr. Purcell's opinion relates to the effect of Claimant's PTSD on his ability to work, and it is integral to the RFC determination because Claimant contends he is unable to work, in part, due to his mental limitations. Accordingly, Dr. Purcell's opinion is relevant and should have been considered and weighed by the ALJ.
Second, the fact that the ALJ considered VA medical evidence predating Plaintiff's onset date does not remedy the error in failing to consider Dr. Purcell's opinion. In Cotton, this court found error where the ALJ considered medical evidence predating Claimant's onset date but failed to explain the weight afforded to a medical opinion from the same period. 2015 WL 5725518, at *7; see also Boyette v. Berryhill, No. 7:17-CV-159-FL, 2018 WL 4689451, at *4 (E.D.N.C. Sept. 28, 2018) (finding the ALJ's extensive review of medical evidence was not a substitute for the ALJ's assessment of the doctor's medical opinion). As Claimant points out, Dr. Purcell's opinion may be considered evidence corroborating the VA disability determination and the opinion of Claimant's treating psychologist that Claimant is unable to work on a regular and continuing basis. Because consistency with other evidence of record is a factor the ALJ must consider when evaluating medical opinion evidence, 20 C.F.R. § 404.1527(c)(4), consideration of Dr. Purcell's opinion may impact the weight the ALJ afforded to the VA disability determination and the opinion of Claimant's treating psychologist. Accordingly, the ALJ's discussion of other evidence of record is no substitute for consideration of Dr. Purcell's opinion.
Finally, it is not apparent that Dr. Purcell's findings are consistent with the ALJ's RFC determination. In the RFC, the ALJ limited Claimant to performing simple tasks, making simple decisions, and only frequently interacting with supervisors, co-workers, and the public. (R. 26). Dr. Purcell opined that, due to Claimant's PTSD, Claimant would have difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work. (R. 358). Claimant's difficulty in maintaining work relationships could prevent him from having frequent interactions with co-workers. See Boyette, 2018 WL 4689451, at *3 (finding error in the ALJ's failure to weigh a medical opinion, albeit brief, that presented a possible conflict with the RFC). Perhaps consideration of Dr. Purcell's opinion might cause the ALJ to impose further limitations in the RFC, or perhaps it would have no impact at all. In any event, it is not the court's role to weigh evidence or to speculate as to how consideration of Dr. Purcell's opinion might impact the ALJ's RFC determination; the ALJ must do so in the first instance. Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013). Accordingly, the ALJ erred in failing to consider and weigh Dr. Purcell's opinion, the error was not harmless, and remand is required.
Claimant also argues that the ALJ erred in considering his VA disability rating and his need for a service dog. Because consideration of Dr. Purcell's opinion may impact the ALJ's assessment of other evidence in the record, including the VA disability rating of 100% connected to PTSD and Claimant's need for a service dog related to his PTSD, those additional issues raised by Claimant are not addressed here and should be reconsidered, as necessary, by the ALJ on remand. See Jones v. Astrue, No. 5:11-CV-206-FL, 2012 WL3580482, at *8 (E.D.N.C. Apr. 19, 2012) ("Because this court finds that remand on the issue of the treating physician's opinion will affect the remaining issues raised by Claimant, it does not address those arguments."), adopted by, 2012 WL 3580054 (Aug. 17, 2012).
VI. CONCLUSION
For the reasons stated above, it is recommended that Claimant's Motion for Judgment on the Pleadings [DE-21] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE- 25] be DENIED, and this matter be remanded to the Commissioner for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until December 3, 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this 19 day of November, 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge